ANALYSIS OF JUNE 9, 2005 SUPREME COURT OPINIONS

Today the Supreme Court of Virginia decides nineteen cases by published opinion. These decisions are analyzed below. These decisions bring to a close the court's 2004-05 term; the court now recesses for the summer, and reconvenes in September for the beginning of the 2005-06 term.

Mandamus

In Cartwright v. CTC, the court holds that a citizen may seek a writ of mandamus under Virginia’s Freedom of Information Act, even though the citizen could obtain the requested documents by other means. The specific holding is that a showing of the absence of an adequate remedy at law is not a requirement for mandamus under the Act. In this regard, the Act’s mandamus provisions are distinguishable from those at common law.

In the course of a condemnation proceeding, Cartwright propounded a request for the production of a certain document maintained by VDOT. The condemnor did not comply with this request. Instead of moving to compel under Rule 4:12, Cartwright filed a FOIA request for the document. VDOT resisted the request, citing two exceptions that allegedly permitted it to withhold the document. Cartwright then moved the Circuit Court for a writ of mandamus to compel disclosure, and for an award of attorney’s fees. The Circuit Court sustained VDOT’s demurrer to this pleading.

Today the Supreme Court reverses, despite the fact that VDOT had subsequently relented and sent the document to Cartwright (after the writ was granted, and VDOT saw the writing on the wall). Finding that FOIA is a highly remedial statute, the terms of which should be interpreted liberally in favor of open government, the court finds that the availability of other means to obtain the documents is irrelevant to the Act’s mandates regarding the provision of documents. It remands the case to Circuit Court for adjudication of Cartwright’s attorney’s fee request.

The lesson here is simple: Those of you who litigate against governmental entities have another way to get documents beyond discovery requests. Remember that FOIA is interpreted liberally in your favor. Those of you who represent governmental entities may have to cough up documents that you might otherwise be able to claim are exempt from discovery.

Attorneys

In a ruling that may be the harshest of the day, the court reverses a Circuit Court’s grant of a nonsuit in Nerri v. Adu-Gyamfi. Mr. and Mrs. Adu-Gyamfi were injured in an automobile accident. They retained an attorney to file suit against the driver of the other vehicle, Nerri. After suit was filed, Nerri’s attorney discovered that the law license of the couple’s attorney was suspended. Nerri moved to strike the pleadings, since they had not been signed by an active member of the Virginia State Bar.

At the hearing on this motion, the attorney admitted that his license had been suspended. His clients, now acting pro se, moved for a nonsuit, which the trial court granted.

But on appeal, the Supreme Court today reverses the grant of a nonsuit, finding that the original pleading was a nullity, and that there was therefore no active case that could be nonsuited. The court grants final judgment in favor of Nerri.

Justice Koontz offers a plaintive dissent, in which he hints at the true cost of this decision. While agreeing that the majority’s ruling is in accord with holdings from other jurisdictions, he notes that under the circumstances of this case, strict adherence to the nullity doctrine leads to an "unduly harsh" result. Pointing to the fact that this rule "punishes the innocent litigant rather than the offending attorney," he thus makes a tacit reference to the probable cost of this ruling: In all likelihood, the statute of limitations will now bar a refiling of the plaintiffs’ action.

Readers of previous versions of this essay know that I generally try to include a statement of how each case will affect your practice, together with occasional advice on how to avoid the problems cited in the opinion, or how to take advantage of a new rule of law as it is handed down. This case, however, leaves me helpless to recommend a course of action. It is abundantly clear, as Justice Koontz mentions, that the hammer of this decision is coming down on the clients, for something they never knew and had no control over. Unless they had constantly asked their attorney for updated certificates of good standing from the state bar, they would probably have no way of knowing about this problem, and no way to take steps to avoid this consequence.

So what's a lawyer to do? The advice to keep your license in good standing is so obvious as to seem almost sarcastic, in view of what happened here. In truth, this circumstance probably points out the need for a statutory change to prevent this kind of hardship in the future.

Judgments

In Morgan v. Russrand Triangle Associates, the court reverses a nunc pro tunc Circuit Court judgment order entered under Code §8.01-428(B). The Circuit Court had entered the order more than 21 days after it originally entered judgment in the case, but justified the later order by reference to the clerical error provision of the statute. Finding that he had erroneously entered the order and not vacated it, the chancellor purported to correct his own error.

The Supreme Court reverses, holding that entry of a judgment order is not, in and of itself, a clerical error. Indeed, the record showed that entry of the order was precisely what the court and the litigants had contemplated. In a hearing held immediately after the first judgment order was signed, the court orally granted a motion for reconsideration, but did not memorialize that ruling by a written order. Thus, the trial court lost jurisdiction of the case 21 days later.

In so finding, the court today emphasizes that clerical errors, as contemplated by §8.01-428(B), are things such as typographic or scrivener’s errors. Corrections are thus limited to what is necessary to correct the record to "speak the truth" of what has occurred, not to change what occurred to something else.

The problem of finality of judgments, in situations such as this, is a recurring one. This case cannot fairly be said to break new ground, unless it is the court's statement that the entry of an order is not itself a clerical error. I emphasize to practitioners that the mandates of Rule 1:1 are self-evident: You must get an order entered to stop the jurisdiction-killing passage of time, and that order must modify, vacate, or suspend the earlier judgment. Oral statements won't work; nor will filing a motion on the 21st day; nor will you preserve any rights when a judge agrees to take your motion under advisement. If you want relief, draft your order in advance and bring it to court with you, so the judge can enter it right away.

Real property

In a certified question of law from the US District Court for the Western District of Virginia, the court delves into the Commonwealth’s legal history to decide United States v. Blackman. The question involved whether Virginia law, as of 1973, permitted a conveyance of a negative easement in gross to a private party.

In case you think this is merely a philosophical exercise, you should know that the stakes are high; at issue is nothing less than transfers of development rights for conservation and historic purposes, affecting lands across the Commonwealth. The particular historic parcels at issue here are in Louisa County, but several environmental groups, within and without Virginia, filed an amicus curiae brief, asserting that numerous parcels, of great cultural and historic value, are similarly situated across the state.

Today, the court decides the question in favor of the United States (and the amici) by holding that Virginia law did indeed provide for such easements in 1973, when the subject easement was granted. The ultimate disposition of the underlying litigation will, of course, be up to the federal district court, but this ruling hands the government a significant victory in its efforts to conserve this and other sites across the Commonwealth.

Eminent domain

The court decides one pure eminent domain case today, in CTC v. Glass. The underlying condemnation proceeding involved property at Zion Crossroads, in Fluvanna and Louisa Counties. After the Commonwealth filed a certificate and petition, the landowner moved the court to include within the subject matter of the case several parcels he owned that were adjacent to the parcels directly affected by the take. He contended that he had a development plan for a large tract of land, encompassing roughly 125 acres, and that the parcels subject to the take were important parts of, but were not coextensive with, the scope of his project.

The trial court granted this request over the CTC’s objection, and the matter proceeded to trial. The principal issue for the commissioners was, as usual, the amount of just compensation. But they were also required to determine whether the adjacent parcels should be considered in terms of damage to the residue, under the unity of lands doctrine. This doctrine permits the court to consider a condemnation’s effect on adjacent parcels if three "unities" are present: Unity of use, physical unity, and unity of ownership. Of these, physical unity was present, since the parcles were contiguous; and unity of ownership was not in dispute. The question presented relates to unity of use.

The commissioners returned a report in favor of the landowner, fixing just compensation at roughly $1.85 million. In response to the CTC’s appeal, the Supreme Court today reverses that portion of the award ($1.28 million) relating to the adjacent parcels, finding that, as a matter of law, there was no unity of use. In this case, the principal parcels contained a motel and restaurant, but the adjacent parcels were largely unimproved. Two of them contained uses that were unrelated with the uses of the principal parcels. The court found that the record "is devoid of any evidence of an actual joint use Glass was making of any of the additional parcels" as of the date of the take.

Responding to the landowner’s assertion that he had a business plan for the commercial development of the whole of the properties, the court finds such a plan to be a phantom of his imagination; it found "no evidence Glass, personally, had any plans to develop any part of the 125 acre tract for any specifically identifiable purpose."

The court affirms the trial court’s award for the take and for damages to the residues of the original parcels, and enters final judgment in favor of the CTC on the adjacent parcels.

This case emphatically is not a death knell for claims of damage to adjacent parcels. There are still ways to do that, but it requires more than this landowner's vague idea of future development. Where a landowner with several contiguous parcels gets wind of an impending take, either by VDOT or by some other condemnor, he should do what's necessary to advance his development plans immediately. That does two things: It gives him a better chance of realizing his claim in the event the condemnation goes through, and (if the development plans are sufficiently far advanced) it may even persuade the condemnor to take a path of lesser resistance, and leave the landowner with his property intact.

Intellectual property

The court decides today a dispute over the right to use the service mark of the Southern Christian Leadership Conference in Virginia. The decision is SCLC, Virginia State Unit v. Shannon.

The SCLC was founded decades ago by Martin Luther King, Jr. in Georgia. That group formed a Virginia unit in 1960, and thereafter operated continually although informally, at least as far as the law is concerned; the group did not incorporate in Virginia, did not register a fictitious trade name, and did not obtain a certificate of authority to transact business here.

Years later, a disagreement arose among some of the members of the Virginia office. Some of those members formed a new group, calling itself "Southern Christian Leadership Conference, Virginia State Unit, Inc." and incorporated under that name. The group then registered various SCLC service marks. Upon hearing of this, the Georgia SCLC got a certificate of authority and a fictitious name certificate. This litigation followed, to decide which group had the right to the service marks. The trial court ruled in favor of the Georgia group; the new Virginia corporation got a writ.

Today the Supreme Court rules in favor of the Georgia group, affirming common law intellectual property doctrine that predates Virginia’s Trademark and Service Mark Act. Under the common law, it is use, not registration, that gives a party a right in a service mark. The court finds that the Georgia group has used the marks continuously for over 40 years, and thus has the superior right to use them.

Torts

Two opinions are handed down today in tort cases (in addition to two medical malpractice cases, which are analyzed separately). In one, the court rules that an employee of the Metropolitan Washington Airport Authority is not entitled to immunity from liability for gross negligence in a claim arising out of a collision with a MWAA ambulance and a private vehicle. The case is Couplin v. Payne.

The statutes creating the MWAA give it immunity from liability for claims arising out of the performance of governmental functions, much as a municipal corporation would enjoy. But the language of the statute does not create such an absolute immunity for the authority’s employees. Today, the Supreme Court holds that such an omission means that the employees are not immune. It does hold, however, that the employees’ immunity in such cases should be limited only to gross negligence, in the manner of municipal employees performing discretionary functions.

The authority argued that this position would make the authority indirectly liable for matters on which the statute grants it immunity, since it will indemnify its employees. The court dismisses this contention, saying that any indemnity arrangements between the authority and its employees are beside the point; the plain language of the statute excludes the employees from the protection afforded by the statute.

One effect of this decision is that it gives you an instant body of caselaw to refer to for evaluating claims against employees of this authority. The court says here that the liability standard of these employees for governmental function acts is essentially the same as that of municipal employees for discretionary acts. Thus the entire field of municipal employee caselaw, including James v. Jane, Messina v. Burden, Colby v. Boyden, and so forth, will help to shape claims and defenses involving these employees.

The other tort case is City of Lynchburg v. Brown, another immunity case, this time arising at a municipal recreational facility. Brown was injured when she stepped off the end of a set of aluminum bleachers at a City softball field. The end of the row was bent down, and the end cap was missing, a fact hidden from Brown by shadows at the field.

Cognizant of the recreational facility statute (Code §15.2-1809) that gives municipalities immunity from liability for simple negligence, Brown sued, alleging gross negligence. She contended that the City had constructive knowledge of the condition (which City employees conceded should and would have been corrected had they known about it), and that its failure to discover it and repair it constituted gross negligence. A jury agreed, and awarded her damages of $37,500.

Today, the Supreme Court disagrees. Focusing on the fact that plaintiff cannot show actual advance knowledge by the City, the court finds that these circumstances, as a matter of law, cannot rise to the level of gross negligence, and enters final judgment in favor of the City. While the opinion stops just short of saying that constructive notice can never create gross negligence, the state of the law is such that the practitioner should foresee a similar ruling in all such cases in the future. Unless the plaintiff can demonstrate actual knowledge in a premises liability case, it will be difficult indeed to establish the gross negligence necessary to get such a claim to a jury.

One question that occurs to me is just how much is left of municipal tort liability for the operation of recreational facilities. This case turns on the recreational facility statute, but municipalities also enjoy the benefits of the recreational use statute, Code §29.1-509. This ruling holds that the failure to notice and repair an open and obvious defect (the parties stipulated that the broken bleacher was open and obvious) probably won't get you gross negligence. In this context, you almost certainly need to show actual knowledge by the municipality, or by a supervisory employee, to get past the bar of these two statutes.

Arbitration

When is an arbitration not an arbitration? When there’s no arbitration hearing, the court rules today in Bates v. McQueen, which arises out of a logging contract in Surry County. The contract contained a binding arbitration clause, and when a dispute arose, the parties each named an arbitrator, as called for in the contract. The arbitrators were unable to agree, so they named a third arbitrator (again, exactly as provided). But before that arbitrator could do anything, McQueen filed suit; Bates counterclaimed.

The trial court named yet another arbitrator, and at the request of the parties, entered an order providing for the terms of the arbitration hearing, including required notice and a directive that the proceedings comport with the Virginia Uniform Arbitration Act.

But this arbitrator had other ideas; he did his own investigation, and subsequently issued a ruling, without bothering with the hearing. Bates moved to set that ruling aside, contending that there had to be a hearing. The trial court denied this motion, confirmed the award, and directed McQueen to file a motion for costs and fees, subsequently awarding over $10,000 of those. Bates appealed.

Today the Supreme Court reverses, holding that the parties voluntarily agreed to abide by the requirements of the uniform act, and that requires a hearing. The court rules that the failure to conduct a hearing is "tantamount to no arbitration. Unless the parties agree otherwise, a hearing is a fundamental part of the arbitration process . . ." The court remands the case to the Circuit Court, with instructions to require the hearing as originally ordered.

Contracts

The court decides today two cases involving contracts, both arising in Virginia Beach. In one, the court specifies the quantum of damages for a failure to procure insurance. In Autumn Ridge LP v. Acordia of Virginia, Acordia, an insurance agency, essentially admitted that it had goofed; the builder’s risk policy it issued was supposed to insure twelve limited partnerships that jointly owned a multi-family housing project. But when the policy was written, it named National Housing Corporation, the partnerships’ "administrative assistant" for purposes such as procuring insurance. National didn’t own the buildings; the partnerships did. But as long as nothing untoward happened, there was no complaint.

The complaints began when one of the partnerships had a claim. The insurance carrier denied coverage, since that partnership wasn’t a named insured. Litigation ensued between the partnership and Acordia, resulting in an award in favor of the partnership that was affirmed on appeal in 2002.

The partnerships jointly sued Acordia to recover their premiums paid. The trial court declined to award them damages, finding that since they had not suffered any losses due to uncovered claims (other than the 2002 case), they had no provable damages.

It is this last ruling that the Supreme Court reverses today. The court rules that "when the insured suffers a loss, the measure of damages for failure to procure insurance is the amount that would be due under the policy. However, when no loss has occurred, the measure of damages is the amount paid by the intended insured as the premium."

In the other contract case decided today, the court affirms a denial of a request for specific performance for the sale of 23 unimproved lots. In WBM, LLC v. Wildwoods Holding Corp., Wildwoods, which was created in 1971, owned the 23 lots since its creation, and had never developed them. It contracted to sell them to the son of one of its three shareholders; the contract was executed on behalf of the company by its president. (The president later denied that he signed the document.) But after the contract was executed, the president got cold feet; he told the purchaser that he had changed his mind about selling the property.

The buyer assigned the contract, and an assignee filed a specific performance suit. The trial court declined to order specific performance, on several grounds. The most important of those was the president’s lack of authority to execute the contract on behalf of the company. The company had never held a board of directors meeting to discuss this contract – indeed, the board met only three times in 31 years – and since this was not a sale of property in the ordinary course of the company’s business, it required the board’s approval.

The Supreme Court affirms this ruling, noting that, while the company was formed for the express purpose of dealing generally in real estate, still it had never done so throughout its corporate existence. And the sale of substantially all of the company’s assets requires board approval under the title of the Code dealing with corporations.

The Supreme Court also approves the trial court’s finding that essential terms of the contract were unclear, uncertain, incomplete, and indefinite. It reaffirms that specific performance is not automatically to be awarded in each case, but rests in the chancellor’s discretion.

The Supreme Court does find fault with one ruling by the trial court, but decides that it is harmless error. Plaintiff filed a sworn pleading in which it alleged that the president had signed the contract; defendant’s answer denied the signature, but was not accompanied by an affidavit, as required by Code §8.01-279. The trial court ruled that the affidavit was unnecessary, because the signature was in issue all through discovery. This ruling was erroneous, the court explains today, but immaterial, since it was clear from the chancellor’s ruling that he believed that the president had indeed signed.

The lesson from this case is obvious. If you represent a buyer in a contract where the seller is a corporation, it would be wise to require, as a specific contract provision, production at closing of a copy of a resolution by the seller's board of directors, specifically authorizing the sale.

Sexually Violent Predator Act

In two appeals consolidated for decision, the Court affirms the constitutionality of the relatively new Sexually Violent Predator Act, providing for the civil commitment of persons who are about to be released from prison, but who are regarded as potentially violent sexual predators. The opinion in Shivaee v. Commonwealth includes a resolution of Butler v. Commonwealth.

The court first addressed the Act in the March session, when it decided three cases. But none of those appeals involved questions of the constitutionality of the Act. Today, the court analyzes the Act within the framework of the United States Supreme Court’s most recent pronouncements on similar legislation in other states. It finds that the Act provides adequate procedural and evidentiary safeguards, and that it is not impermissibly vague. In an important holding, the court recognizes that the commitment provided for in the Act is civil in nature, thus avoiding any challenges based on the prohibition of double jeopardy or ex post facto laws arising in the criminal context.

The court also approves the evidentiary standard imposed upon the Commonwealth for such commitments (clear and convincing), and applying that standard, rejects Shivaee’s contention that the evidence was sufficient to warrant his commitment. It thus affirms orders of commitments for both appellants.

Medical malpractice

In the first of two medical malpractice cases decided today, the court reverses a defense verdict, making several evidentiary rulings in the process. The case is Holley v. Pambianco, and involved a colonoscopy that resulted in a perforated colon. During what was expected to be a routine colonoscopy, the doctor discovered two polyps in Holley’s colon. He immediately removed them by cauterizing (essentially, burning) them away from the colon wall.

After being discharged from the hospital, Holley subsequently developed adverse symptoms, and on two separate days called the doctor’s office to report them. On these occasions, a nurse gave him conservative treatment advice (to walk, drink tea, and take a prescription medication). On the third such occasion, he was directed to report to a hospital emergency room, where the perforation was discovered. Holley thus spent ten days in the hospital for treatment of the ensuing peritonitis, and underwent corrective surgery thereafter.

In a jury trial, the trial court made several rulings that form the heart of today’s opinion. Some of those relate to the particular circumstances of this case. One ruling of general importance is the Supreme Court’s statement that "raw statistical evidence is not probative of any issue in a medical malpractice case and should not be admitted." Citing its opinions dating back to 1945, the court thus holds that evidence of the number of "failures" in a given procedure, even expressed as a percentage of all such procedures, should not be given to the jury, in consideration of their tendency to mislead.

The court also rejects the admission of an educational videotape shown to Holley before the surgery, finding that it had no tendency to prove failure to mitigate damages, which was the only issue for which it was offered.

In Auer v. Miller, the court addresses an issue of first impression, relating to the immunity provision in Code §8.01-581.18. That section grants immunity to a physician for liability arising out of his failure to review, or failure to act upon, a report of any test he did not personally request, unless the patient gives him a copy and asks for a consultation on it.

This case involved a failure to diagnose a staph infection in an aortic valve. The patient came to a hospital in Norfolk for surgery to replace the valve. His cardiovascular surgeon replaced the valve with a prosthetic valve; he also ordered certain testing of the native valve. The patient was released from the hospital eight days after surgery.

Unfortunately, the test showed the presence of a staph infection; tragically, neither the surgeon nor the patient’s regular cardiologist ever saw the report. The infection later developed into endocarditis. The patient returned to the hospital eleven days after his discharge, but by then it was too late; he died shortly thereafter.

The Supreme Court addresses two issues relating to this case. First, it affirms the trial court’s grant of immunity to the cardiologist, under the plain terms of the immunity statute. The surgeon, not the cardiologist, ordered the test, and there was no evidence that the patient ever gave the cardiologist a copy of the report. The court brushes aside the plaintiff’s suggestion that the statute be read only to extend immunity in outpatient situations, since the language of the statute contains no such limitation.

Second, the court rules on the liability of the cardiologist’s practice group. One of the plaintiff’s claims involved several phone calls made to the group seven days after discharge, in which the patient’s wife expressed concern about her husband’s condition. The group did not immediately advise that he return to the hospital; the jury found that this delay, and the ensuing delay in treatment, proximately contributed to his death. It found in favor of the plaintiff, but the trial court set that verdict aside, finding that the plaintiff did not adduce evidence sufficient to show that the four-day interval would have enabled the patient to survive. The Supreme Court today affirms that ruling, noting that none of the plaintiff’s expert witnesses testified unequivocally that treatment on the seventh day following discharge would have saved the patient’s life.

This latter ruling is nothing more than proximate causation; the court finds that the "act or omission" complained of was the failure to get the patient in for treatment sooner. But where the plaintiff's three experts gave equivocal responses on whether the earlier treatment would have made a difference, the evidence thus did not establish that the "act or omission" thus caused the death.

Criminal law

The court decides five criminal cases today, and considering historic results, the day was a general victory for the defense bar; the court reverses two of the four appeals brought by criminal defendants, and rules against the Commonwealth in a fifth case.

Two of the cases involved Miranda issues. In Dixon v. Commonwealth, Norfolk police officers encountered Dixon by the side of Interstate 64, where there had been an accident. In their encounter with him, he became unruly and combative; that and the strong odor of alcohol about him led the officers to handcuff him. When a state trooper appeared and took over the handling of the scene, he replaced the officers’ handcuffs with his own. He then placed Dixon in his patrol car and locked the door, telling Dixon that he was not under arrest, but was being held there for investigative reasons, and for the safety of the trooper and Dixon. Since he was not regarded as being under arrest, no Miranda warnings were given to him.

During this time, Dixon answered the trooper’s questions, admitting that he had consumed four or five beers, and had operated the vehicle. He refused some field sobriety tests and a preliminary breath test. At that point, the trooper arrested Dixon and read Miranda warnings to him.

Dixon filed a motion to suppress evidence of all statements he made to the trooper before the Miranda warnings, contending that he was, in effect, under arrest from the outset of the encounter. The trial court rejected this motion, finding that the initial restraint on Dixon was not sufficient to convert a Terry stop into a custodial arrest.

On appeal, the Supreme Court reverses this finding, and remands the case for a new trial. It views the circumstances from Dixon’s standpoint, noting that he must be given the Miranda warnings "as soon as the police have restricted his freedom of action to a ‘degree associated with formal arrest.’ " Viewing the situation in its totality, the court concludes that a reasonable person in this condition (handcuffed and locked inside a police car) "would have understood that his freedom was being restricted to a degree associated with formal arrest."

The court takes care to note that it is the combination of factors presented here that compel this conclusion. The opinion specifically states that one of them alone does not necessarily convert a Terry stop into an arrest.

The news was not all bright for Dixon, however; the court affirms his conviction of unreasonably refusing a blood or breath test, finding that that is a civil proceeding to which Miranda rights do not apply.

In the other case involving Miranda issues, the court affirms a ruling by the Court of Appeals, in which a suspect was held to have unambiguously requested counsel during police questioning. The decision is Commonwealth v. Hilliard, a rare criminal appeal by the Commonwealth.

At trial and on appeal, Hilliard pointed to three moments in the interrogation in which he allegedly requested counsel. The court finds that the first two were not sufficient to invoke his right to counsel. The third one, though, was a different matter.

"Can I get a lawyer in here?"

Criminal practitioners will note the similarity between this question and the one asked by the defendant in the recent case of Commonwealth v. Redmond, 264 Va. 321 (2002), where Redmond asked his interrogator, "Can I speak to my lawyer?" In that case, the court held that the request was not sufficient to invoke the right to counsel, a fact emphasized in a dissent by Justice Agee in today’s decision. Nevertheless, the majority today holds that Hilliard’s question, considered in the context of the rest of the questioning, "was an unequivocal request for counsel stated with sufficient clarity that a reasonable police officer under the circumstances would have understood the statements to be a request for counsel."

Obviously, this ruling is very fact-specific. Even given that caveat, it is best to note that the law in this field is anything but clear; there is no bright-line rule for determining exactly when such a question will or will not be considered an unambiguous request.

In Charles v. Commonwealth, the court rules that participation in the state’s Detention Center Incarceration Program is indeed "incarceration" for the purpose of calculating time served credit on probation. The Court of Appeals had determined that the trial court’s decision, finding that the program was not incarceration, was not an abuse of discretion. Today, the Supreme Court reverses, ruling as a matter of law that participation in the program is incarceration.

This case is significant in its application of the ends of justice exception to the usually deadly requirements of Rule 5:25 (Rule 5A:18 in the Court of Appeals). Charles did not raise these arguments in the trial court, but today the Supreme Court grants a rare reprieve from the general rule prohibiting consideration of such issues. The reason cited is that imprisonment for a time in excess of a lawfully pronounced sentence is invalid, and "[d]enying Charles his liberty on the basis of a void sentence would impose a grave injustice upon him." Instances like this, where the court agrees to hear an argument not raised below, are precious and few. This case should thus be studied by anyone looking for a way to advance an appellate argument that was not raised at trial.

Another criminal appeal decided today involves an evidentiary error in a capital murder case. In Rose v. Commonwealth, the trial court had admitted evidence of a similar crime committed months before the murder, finding the two crimes to have been sufficiently idiosyncratic as to justify the introduction of the evidence. The Supreme Court reverses, finding some similarities between the two crimes, but noting other significant differences. The similarities were insufficient to warrant a departure from the usual rule that evidence of other crimes is not admissible to prove guilt of the instant charge. The court also notes that the probative value of the evidence did not outweigh the prejudice to the defendant by its admission.

This last statement must seem tragically ironic to Rose today, since his victory on the evidentiary point was entirely symbolic; the court finds that the erroneous admission of the evidence was harmless, since "[t]he evidence of [his] guilt is overwhelming." Among other things, Rose discussed in advance his plans to commit a robbery that led to the capital murder charge; admitted to several people, including but not limited to fellow residents of the local jail, his involvement in the crime; and displayed the pistol used in the murder to one such person. DNA evidence further pointed to Rose as the perpetrator. Rose stopped short of posting a confession on his Web site, but otherwise proved to be his own worst enemy at trial. The jury’s sentence (life plus 38 years) is thus affirmed.

The court issues today a per curiam order affirming a conviction of carrying a firearm by a convicted felon, in Farnsworth v, Commonwealth. Farnsworth was convicted of a felony in West Virginia in 1979. When he was released from prison, he received a document restoring his civil rights, something evidently more easily obtainable in that state than here. Arrested for carrying a firearm in Virginia, he defended himself by showing the trial court his West Virginia certificate.

The trial court was not impressed; it convicted him of carrying a firearm after having been convicted of a felony. The Court of Appeals affirmed the conviction, and today the Supreme Court agrees. It finds that there are two methods by which the criminal statute at issue here exempts felons from prosecution: They may obtain a restoration of rights from the Governor of Virginia, or they may get such a restoration by order of a Virginia Circuit Court. Since Farnsworth did neither of these things, his conviction stands.

A bonus for my readers who have made it this far: The court also decides two additional cases by unpublished order. The first involves an appeal by a criminal defendant who finished her sentence while the appeal was pending. Given that circumstance, the court finds that the appeal is moot, and dismisses it. The case is Widdifield v. Commonwealth, and is not posted on the court’s web site (or anywhere else on the Internet, to my knowledge). The decision rests on the court’s doctrine of deciding only active controversies; since Widdifield had been released form custody, "resolution of the issue in this case will not affect the length of [her] sentence or incarceration."

The second order case is Johnson v. Commonwealth, on remand from the Supreme Court of the United States for resentencing in light of the latter court's recent decision in Roper v. Simmons. In compliance with the high court's directive, the court today commutes Johnson's death sentence to life in prison.

I have copies of these orders and will forward either or both upon request to any of my readers who want one; please send an e-mail to emmert@virginia-appeals.com with your request.